Raymond H. Brescia and Edward J. Ohanian, both of Albany Law School, have posted on SSRN their new paper, "The Politics of Procedure: An Empirical Analysis of Motion Practice in Civil Rights Litigation Under the New Plausibility Standard."

Abstract:

Is
civil procedure political? In May of 2009, the Supreme Court issued its
decision in Ashcroft v. Iqbal, which explicitly extended the
“plausibility standard,” first articulated in Bell Atlantic v. Twombly
two years earlier, to all civil pleadings. That standard requires that
pleadings, in order to satisfy Rule 8(a) of the Federal Rules of Civil
Procedure, must state a plausible claim for relief. For many, these
rulings represented a sea change in civil pleading standards. Where
prior Supreme Court precedent had provided that a pleading should not be
dismissed “unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim,” the new standard requires that
judges utilize their own “judicial experience and common sense” to
determine whether claimants have set forth facts sufficient to “nudge
their claims across the line from conceivable to plausible.” In the
years since their issuance, this standard has provoked many questions.
One such question, which lurks behind all otherwise neutral rules of
procedure is the following: could this apparently neutral principle of
procedure be subject to political manipulation?

After
Twombly, and again after Iqbal, many expressed fears that the new
plausibility standard offered judges too much discretion; a judge could
dismiss a case where a plaintiff’s claims did not comport with that
judge’s experience and common sense. There was a particular fear that
this discretion would have a disparate and adverse impact on civil
rights cases: i.e., if members of the federal bench were predisposed to
disfavor such claims, they might use these precedents to dismiss civil
rights cases too readily. Several years have now passed since the Court
issued these decisions, and the district courts have compiled a body of
thousands of decisions citing these precedents. As a result, it is now
possible to assess the impact of these decisions on practice in the
lower courts, particularly their effect on civil rights cases. The study
described here attempted to do just that by looking at outcomes and
trends in motions challenging the specificity of the pleadings in over
500 employment and housing discrimination cases over a period of six
years (including decisions issued both before and after Twombly and
Iqbal). This research reviewed the outcomes in such cases based on a
number of metrics, including, most importantly, the political
affiliation of the president who appointed the judge issuing each
decision reviewed.

The study revealed a statistically
significant relationship between the outcomes in civil rights cases and
time period (i.e. pre-Twombly, post-Twombly but pre-Iqbal, and
post-Iqbal) where the political affiliation of the president who
appointed the judge reaching the decision in each case was Republican.
For cases decided by judges appointed by Democrat-affiliated presidents,
no such relationship was observed. This paper reports on the findings
of this study and discusses their implications.